Raymer v. State

• Decision Date: 10 October 1978
• Docket Number: No. 1-777A138,1-777A138
• Citation: 177 Ind.App. 696,381 N.E.2d 109
• Parties: Norman E. RAYMER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 109

381 N.E.2d 109

177 Ind.App. 696

Norman E. RAYMER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-777A138.

Court of Appeals of Indiana, First District.

Oct. 10, 1978.

Stephen R. Lewis, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Defendant-appellant Norman E. Raymer appeals from his conviction by a jury of burglary in the first degree.

We affirm.

FACTS

The evidence most favorable to the State shows that Raymer and Michael Witt stopped at the residence of Charles Sidlinger on the morning of March 30, 1976. When no one answered their knock at the door, they opened the door of the attached garage and went into the garage. Their efforts were interrupted when a neighbor, Wayne Drake, came to investigate. Raymer and Witt sped away when Drake commenced questioning them. Drake followed them and obtained the license number of the automobile.

At Raymer's trial, Witt testified in detail concerning the presence of Raymer and Witt at the Sidlinger home and their activities earlier and later that same day. Tammy Whitaker, with whom Raymer allegedly lived at the time of the burglary, gave testimony which tended to support Witt's statements and also rebutted parts of Raymer's testimony.

ISSUES

Raymer lists five issues:

1. Is there sufficient evidence to prove Raymer's participation in the burglary?

2. Did the trial court admit hearsay testimony?

3. Did the trial court err in denying Raymer's motions for mistrial?

4. Did the trial court err in deleting a portion of Raymer's tendered instruction before reading it to the jury?

5. Did the trial court err in denying Raymer's motion for discharge?

Issue One

Raymer argues that the State presented insufficient evidence to prove Raymer's participation in the burglary. In his brief Raymer makes the statement, "There was no credible evidence that the Defendant-Appellant (Raymer) committed the crime of First Degree Burglary unless we accept as true the version offered by (Witt)."

Credibility of witnesses is a matter to be determined by the jury. Martin v. State (1974), 262 Ind. 232, 314 N.E.2d 60.

A defendant may be found guilty solely on evidence provided by a confessed accomplice. Coleman v. State (1975), 264 Ind. 64, 339 N.E.2d 51; Newman v. State (1975), 263 Ind. 569, 334 N.E.2d 684.

In the case at bar, the jury properly could have accepted as true the testimony provided by Witt. As Raymer acknowledges in his brief, that evidence is sufficient to sustain the conviction. Furthermore, testimony given by Whitaker also favors the verdict returned by the jury. Raymer's conviction is supported by sufficient evidence. ¹

Raymer argues that the failure of the State to introduce into evidence property allegedly stolen during the burglary should have caused the trial court to strike from the record all testimony relative to the property. He cites Keiton v. State (1968), 250 Ind. 294, 235 N.E.2d 695 in support of his argument.

In Pulliam v. State (1976), 264 Ind. 381, 390, 345 N.E.2d 229, 237, our Supreme Court wrote:

". . . There is no law to support the proposition that a failure to introduce into evidence a physical object about which there has been testimony is fatal and that all testimony regarding the physical object must go out. To the extent that this case (Keiton v. State ) holds that the failure to introduce into evidence the physical object of a theft creates an insufficiency of the evidence and is a fatal defect, it is overruled. * * * " (Our insertion)

Raymer's argument is answered by this holding in Pulliam.

The State also points out correctly that a conviction for burglary does not require proof of theft. It requires only proof of an Intent to commit a felony. IC 1971, 35-13-4-4 (Burns Supp.1977).

Issue Two

Raymer argues that the trial court erroneously admitted hearsay evidence from three witnesses.

In Wells v. State (1970), 254 Ind. 608, 614, 261 N.E.2d 865, 869, our Supreme Court included the following definition of hearsay evidence:

" 'Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.' (McCormack, Evidence § 225)"

Raymer argues that witness Michael Witt gave hearsay testimony. He cites pages 207 and 208 of the record, on which pages appears the following testimony preceding the objection:

"Q. At the time that you were arrested, did you have conversation with Sheriff Murnan?

A. Uh, at the time I was arrested?

Q. Un-huh.

A. Yes, I did.

Q. Do you recall what you told him at that time?

A. Uh, no, not in particular, I don't.

I think I might I might have said

MR. SNYDER: I'm going to object to anything being said because it was said outside the presence of this Defendant."

Witt could testify concerning his own assertions, because Witt was in court and was subject to cross-examination. Witt was allowed to testify concerning his conversation with Sheriff Murnan: "I mentioned that Norman was with me." The trial court did not err.

Raymer argues that witnesses Sheriff Murnan and Detective Brooke Appleby gave hearsay testimony. Both testified that they commenced investigating Raymer's participation in the burglary as a result of conversations with Witt. Raymer refers to this testimony as "the product of hearsay."

In general, hearsay testimony which law enforcement officers rely upon in advancing their investigations is not evidence to be used in the trial of a criminal case. Glover v. State (1969), 253 Ind. 121, 251 N.E.2d 814.

Witt already had testified that he informed Sheriff Murnan of Raymer's participation. Murnan, Appleby, and Witt were in court and were subject to cross-examination. The trial court did not commit reversible error in admitting the testimony to which Raymer objected. See Flewallen v. State (1977), Ind., 368 N.E.2d 239; Patterson v. State (1976), 263 Ind. 55, 324 N.E.2d 482.

Issue Three

Although Raymer summarily argues that the trial court erred in denying his motions for mistrial, his Issue Three incorporates a potpourri of arguments.

Raymer argues that the trial court erred in allowing the State to call two witnesses, Whitaker and Chambers, who were not listed in the State's response during pre-trial discovery.

Raymer's proper remedy was to seek a continuance. Siblisk v. State (1975), 263 Ind. 651, 336 N.E.2d 650; Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738; Dorsey v. State (1976) Ind.App., 357 N.E.2d 280. Having failed to seek a continuance, Raymer has waived any error. Siblisk v. State, supra.

Raymer argues that the trial court erred in permitting the State to present evidence in rebuttal which the State should have presented in its case in chief.

This court stated in Trinkle v. State (1972), 153 Ind.App. 524, 529-30, 288 N.E.2d 165, 168:

". . . it is within the sound discretion of the trial court to permit a witness to testify during rebuttal regarding a matter which is not in rebuttal but is related to the State's case in chief, and the irregularity in so doing will not be treated as reversible error unless the defendant was prevented from presenting rebuttal evidence thereto. Griffith v. State (1959), 239 Ind. 321, 157 N.E.2d 191; Hollowell v. State (1971), 256 Ind. 467, 269 N.E.2d 755. * * * "

Raymer did present additional evidence after the State's witnesses testified during rebuttal. We do not find reversible error.

Additionally, Raymer had testified that (1) he spent no time with his alleged accomplice Michael Witt, on the day of the burglary, and (2) he (Raymer) was living with his parents on the date of the burglary. Whitaker's testimony rebutted that of Raymer.

Raymer argues that the State purposely misled the trial court in order to persuade the trial court to admit the testimony of witness Whitaker during rebuttal.

The State told the trial court that it had no address for Whitaker until Raymer revealed the address during his testimony. In conjunction with the motion to correct errors, Raymer filed an affidavit averring that the State did have the information; ² the State filed affidavits denying the averments in Raymer's affidavit.

On appeal this court can only review the record; we cannot determine issues of fact. Because of our prior holdings concerning the testimony of Whitaker, we conclude that reversible error did not occur, for Raymer has failed to show prejudice caused him as a result of the order in which the trial court received the evidence.

Raymer argues that the trial court erred in requiring him to answer during cross-examination: "Did your assault and battery charge in 1976 have any connection with Tammy Whitaker?"

Although the State could not have inquired concerning Raymer's prior conviction for assault and battery, Raymer introduced the topic during direct examination:

Q. Okay. Have you been arrested and convicted of anything else?

A. Yes, sir, I have.

Q. For what?

A. In 1976 I was arrested on assault and battery charge.

Q. Were you convicted of that charge?

A. Yes, sir, I was.

Q. Did you plead guilty to that charge?

A. Yes, sir, I did.

Q. Why?

A. 'Cause I was guilty.

The burglary occurred March 30, 1976. Witt testified that during the week preceding March 30, 1976, Raymer and Whitaker stayed at his apartment. Raymer denied have stayed at Witt's apartment. During cross-examination Raymer was asked whether he had ever been to Witt's apartment with Whitaker:

A. No, sir, I haven't.

Q. When was the last time you saw Tammy?

A. The last time? I can't really sit here and say 'cause I don't know. It's been a long time.

Q. Did your assault and battery charge in 1976 have any connection with Tammy Whitaker?

A. Yes.

Defense counsel then objected and his objection was overruled. When Raymer was asked...